Law of Cards: 2 Years Later and Trilegiant/Beckett Media Case Can Begin

Law of Cards: 2 Years Later and Trilegiant/Beckett Media Case Can Begin

After wading through a slew of defendants' motions (consisting of thousands of pages of motions, responses, replies and declarations), the court has officially begun the case against Trilegiant and (some of) its Internet merchant vendors (including Beckett Media).

The case was filed two years ago and asserted ten claims ranging from violations of the Racketeer Influenced Corrupt Organizations Act (RICO) to unjust enrichment claims. The case basically boiled down to the plaintiffs alleging that Trilegiant colluded with Internet merchants (like Beckett) to assess unauthorized charges on consumers' credit or debit card accounts.

This was allegedly accomplished by Trilegiant placing consumers into one (or more) membership programs without valid authorization from the consumers, and then charging those consumers' credit cards, debit cards, or other accounts with unauthorized "membership fees."

After the case was originally filed in 2012, the defendants filed a number of motions to dismiss, which, two years later, have carved out seven of the asserted ten claims (and some of the defendants) from the case. This shrank the case to three claims: alleged violations of the Electronic Communications Privacy Act, alleged violations of the Connecticut Unfair Trade Practices Act and unjust enrichment claims.

The case officially started Monday because that's when the remaining defendants filed answers to the remaining counts in plaintiffs' complaint.

Legal translation: In my mind, Monday marked the beginning of the case because we finally get a look into the defendants' positions.

Beckett was one of the defendants that answered the complaint on Monday. Like most answers, it contained a hundred or so "denials" or statements that Beckett "lacks knowledge or information sufficient to form a belief about the truth of the allegations."

Legal translation: That's all answers really say. Denied. Lacked knowledge. Denied. Denied. Denied. Makes you wonder why such documents exist?

The insight gleaned (beyond denials and a general lack of knowledge about plaintiffs' position) about the cases arose from Beckett's five defenses.

Arbitration – Because of contracts executed by the plaintiffs, the claims should not be in court; they should be in arbitration.

Causation – The plaintiffs voluntarily and knowingly enrolled in Trilegiant's membership programs, so any injuries they suffered resulted from Plaintiffs’ own conduct not Beckett’s conduct.

Contributory negligence - Should Beckett be found liable, any award should be reduced because the plaintiffs and "other individuals or entities" also messed up.

Laches – Plaintiffs took too long to bring their claims.

Lack of standing - Some plaintiffs failed to allege a direct relationship with Beckett, and that should be good enough to let Beckett out of the case.

The most interesting defense was the "contributory negligence" claim because this accusation was not limited to negligence on behalf of the plaintiffs…it also included "other," as-if-yet unidentified parties. This makes me wonder if the "other" parties might be other defendants…like, say…Trilegiant. If so, we could see infighting between defendants as they accuse other co-defendants of being liable…or at least liable for part of the other defendants' liability.

Plaintiff's attorneys love it when a rift forms between an allegedly unified base of defendants. It allows plaintiffs to cut deals with certain defendants, provided they "give up the goods" on the others.

I'm not saying that it has happened here, or will happen, but in any case with multiple defendants, finger pointing is always possible.

The information provided in Paul Lesko's "Law of Cards" column is not intended to be legal advice, but merely conveys general information related to legal issues commonly encountered in the sports industry. This information is not intended to create any legal relationship between Paul Lesko, the Simmons Browder Gianaris Angelides & Barnerd LLC or any attorney and the user. Neither the transmission nor receipt of these website materials will create an attorney-client relationship between the author and the readers.

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Paul Lesko is a shareholder at Simmons Hanly Conroy and the chair of its Intellectual Property Department ( Don’t hold the fact that Paul is a lawyer against him, he’s also a rabid baseball and college basketball fan, and an avid baseball card collector. Paul can be found on Twitter @Paul_Lesko and Google+.

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